Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220 (20 June 1935)

HIGH COURT OF AUSTRALIA

The Commissioner for Railways (New South Wales) Defendant, Appellant; and Cavanough Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

20 June 1935

Rich, Starke, Dixon, Evatt and McTiernan JJ.

Bradley K.C. (with him Chambers), for the appellant.

O'Mara (with him Evatt), for the respondent.

Bradley K.C., in reply.

The following written judgments were delivered:—

June 20

Rich, Dixon, Evatt and McTiernan JJ.

By sec. 80 of the Government Railways Act 1912 N.S.W. it is provided that an officer convicted of felony shall be deemed to have vacated his office.

The respondent was an officer of the Commissioner and, as such, received a certain salary. He was summarily convicted of larceny under sec. 501 of the Crimes Act 1900 N.S.W.. From that conviction he appealed to Quarter Sessions, which upheld his appeal and set aside the conviction (sec. 125 (1) of the Justices Act 1902 N.S.W.). During the period which elapsed from his conviction until its reversal he received no salary and the performance of his duties was suspended.

Upon these facts, which are not proved but appear from pleadings demurred to, the question for our decision is whether the respondent is entitled to recover the unpaid salary.

In our opinion he is so entitled because, his conviction having been quashed, he cannot be considered ever to have been convicted and he cannot be deemed to have vacated his office.

An appeal is not a common law proceeding. It is a remedy given by statute (Attorney-General v. Sillem[1]; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan[2]).

The scope and effect of an appeal must in the end be governed by the terms of the enactment creating it. But the power given to the Quarter Sessions includes authority to quash and set aside convictions. These are familiar expressions and describe a jurisdiction exercisable at common law by Courts of error. The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal. The conviction is avoided ab initio. "The judgment reversed is the same as no judgment" (per Coleridge J., R. v. Drury[3]).

If the conviction were alleged in a pleading, it would be a good answer that there was no such record (Dr. Drury's Case[4]). It is "utterly defeated and annulled" (Lord Sanchar's Case[5]). Acts done according to the exigency of a judicial order afterwards reversed are protected: they are "acts done in the execution of justice, which are compulsive" (Dr. Drury's Case[6]). And proceedings which, although based upon a judgment, are brought to completion before its reversal are not avoided. For "collateral acts executory are barred, but not collateral acts executed" (Dr. Drury's Case[7]). But "upon the reversal of a judgment against any person convicted of any offence, the judgment, execution and all former proceedings become thereby absolutely null and void. If living, he (or if dead, his heir or personal representative, as the case may be) will be entitled to be restored to all things which he may have lost by such erroneous judgment and proceedings, and shall stand in every respect as if he had never been charged with the offence in respect of which judgment was pronounced against him" (Archbold's Criminal Pleading, Evidence and Practice, 21st ed. (1893), pp. 226, 227).

As the respondent in contemplation of law was never out of office, he is entitled to the salary attached to it. There is no allegation that under the terms of his employment an actual performance of duty is a condition precedent to his right to salary.

The Supreme Court (Davidson and Street JJ., Stephen J. dissenting) reached a conclusion in favour of the respondent but based it upon another ground. Their Honors all rejected the view which commends itself to us, but the majority were of opinion that a summary conviction for larceny is not a conviction of felony. The correctness of this interpretation of the Crimes Act was not fully argued upon the hearing of this appeal, but we desire to say that we must not be taken as assenting to it.

The judgment of the Supreme Court should be varied by entering judgment for the plaintiff on the demurrer to the second plea. Subject to the variation, the appeal should be dismissed with costs.

Starke J.

Cavanough sued the Commissioner for Railways of New South Wales for wages. The Commissioner, by a plea, alleged that the wages sued for were in respect of a period between Cavanough's vacation of office and his re-employment, and that Cavanough, an officer within the meaning of the Government Railways Act 1912, was convicted of a felony, and thereby vacated office, and thereafter he appealed and his conviction was set aside, whereupon he was re-employed. Cavanough, in his replication to the plea, alleged that the conviction in the plea mentioned was a summary conviction of the offence of stealing one primus burner of the value of six shillings, and that the conviction adjudged him to pay a fine of £1 and certain costs and, in default, imprisonment. Cavanough demurred to the Commissioner's plea, and the Commissioner to Cavanough's replication. The Government Railways Act 1912, sec. 80, provides: "If any officer is convicted of any felony ... he shall be deemed to have vacated his office." Two questions arise, one whether the summary conviction of Cavanough constituted a conviction for felony: the other whether the setting aside of that conviction abrogated and obliterated it.

The offence of simple larceny created by sec. 117 of the Crimes Act 1900 is undoubtedly a felony (see secs. 9, 116, 117, and the Interpretation Act 1897 N.S.W., sec. 29.) It may be that the provisions of the Crimes Act 1900, Part XIV., chapter I., providing for the hearing and determination of certain indictable offences in a summary manner, do not alter the character or quality of the offence (In re Burley[8]). But chapters II. and III. deal with offences punishable summarily as distinguished from indictable offences punishable summarily. Chapter III. comprises, amongst other offences, "A. Assaults; B. Larceny and similar offences." The language used in the various sections is appropriate for the creation of offences, and no offence would exist, in many cases, but for the particular section. (See secs. 495, 496, 505, 506, 510, 512.) Sec. 501, under which Cavanough was charged and convicted, falls within chapter IIIB. and provides:—"(1) Whosoever commits ... (a) simple larceny; or (b) the offence of stealing any chattel, money, or valuable security from the person of another ... and the amount of money or the value of the property in respect of which the offence is charged ... does not exceed ten pounds, shall on conviction in a summary manner ... be liable to imprisonment for twelve months or to pay a fine of fifty pounds. (2) The jurisdiction ... shall be exercisable only by a stipendiary or police magistrate." But this provision does much more than prescribe a summary punishment for an offence already created: it states the offence and what is necessary to constitute it an offence punishable in a summary manner. The provisions of secs. 497 and 548A were referred to as inconsistent with this view. But the effect of those sections is that the offence punishable in a summary manner may be remitted for trial upon indictment, as an indictable offence may be remitted for summary hearing and determination under Part XIV., chapter I. In the result I agree with Davidson and Street JJ. that Cavanough was not convicted of any felony.

Even if Cavanough were convicted of a felony, however, the allowance of his appeal and the setting aside of his conviction abrogated and obliterated it. It is true that anyone who acts in execution of a judgment may justify under it, notwithstanding its removal, reversal or annulment, for it was good when given (Alleyne v. The Queen[9]; Smallcombe v. Olivier[10]). But the consequence of the reversal of a judgment or conviction is that it is annulled and held for nothing, and the party is restored to all things which by reason of the judgment he has lost (see Archbold's Criminal Pleading, Evidence and Practice, 22nd ed. (1900), p. 261; R. v. Drury[11]; R. v. O'Keefe[12]; R. v. Lee[13]). The allegation in the plea that Cavanough's appeal was upheld and his conviction set aside is in substance an allegation, when the relevant statute (Justices Act 1902) is examined, that the conviction was reversed and quashed. The consequence was that his conviction was obliterated, and, to use the language of the old forms, "altogether held for nothing."

Judgment should be entered for the plaintiff in demurrer.

Judgment of the Supreme Court varied by entering judgment for the plaintiff on the demurrer to the second plea. Subject to the variation appeal dismissed with costs.

Solicitor for the appellant, F.W. Bretnall, Solicitor for Transport.

Solicitors for the respondent, Landa & Lamaro.

[1] (1863) 2 H. & C. 581, at pp. 608, 609; 159 E.R. 242, at p. 253; [1864] EngR 352; (1864) 10 H.L. Cas. 704; 11 E.R. 1200.

[2] [1931] HCA 34; (1931) 46 C.L.R. 73, at p. 108.

[3] (1849) 3 Car. & K., at p. 199; 175 E.R., at p. 520.

[4] (1610) 8 Co. Rep., at p. 142 b; 77 E.R., at p. 691.

[5] [1572] EngR 445; (1613) 9 Co. Rep. 117 a, at p. 119 b; [1572] EngR 445; 77 E.R. 902, at p. 906.

[6] (1610) 8 Co. Rep., at p. 143 a; 77 E.R., at p. 691.

[7] [1572] EngR 109; (1610) 8 Co. Rep. 141 b; [1572] EngR 109; 77 E.R. 688.

[8] [1932] HCA 5; (1932) 47 C.L.R. 53.

[9] [1855] EngR 606; (1855) 5 E. & B. 399; 119 E.R. 529.

[10] [1844] EngR 646; (1844) 13 M. & W. 77; 153 E.R. 32.

[11] [1848] EngR 362; (1849) 3 Car. & K. 193; 175 E.R. 517.

[12] (1894) 15 L.R. (N.S.W.) 1; 10 W.N. (N.S.W.) 194.

[13] (1895) 16 L.R. (N.S.W.) 6; 11 W.N. (N.S.W.) 121.